HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

v

LEEDS CROWN COURT (RESPONDENTS) EX PARTE WARDLE (AP) (APPELLANT)

(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)

ON 8 MARCH 2001

[2001] UKHL 12

LORD SLYNN OF HADLEY

My Lords,

1. The certified point of law on this appeal is "When, in a Magistrates' Court does the charging of an offence cause a fresh custody time limit to run?" It presumes that a custody time limit is already running in respect of one offence charged and that, to put it neutrally, a second charge of an offence is brought.

2. What happened here was that the appellant on 17 August 1998 was arrested for a murder committed on 20 July of that year in the course of a violent burglary. The appellant was released but subsequently arrested again and he was charged with murder on 7 January 1999. He appeared before the Leeds Magistrates' Court on the following day.

3. The police had two statements from a Home Office pathologist which concluded that the victim's death occurred because of minor injuries in the course of a physical struggle and the fear for his safety which that engendered. It was plainly a case in which the police had difficulty in concluding whether murder was the appropriate charge.

4. By virtue of Regulation 4 of the Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987/299) the time during which the appellant could be detained in custody on the murder charge expired on 19 March 1999. On 11 March the defendant's solicitor received 66 witness statements and 1600 pages of documents including police statements. The Crown Prosecution Service said in a letter of 10 March "Whilst the charge of murder is to be discharged at this stage we reserve counsel's right to reinstate the same should he feel it appropriate on his perusal of the documents after committal".

5. When the appellant appeared before the magistrates' court on 19 March 1999 the prosecution offered no evidence on the murder charge but laid a charge of manslaughter. They sought an extension of time for the appellant to be kept in custody on the murder charge. The Stipendiary Magistrate acceded to the application and extended the custody time limit on the murder charge and further held that a new custody time limit was to be applied to the manslaughter charge.

6. On appeal, the Crown Court judge on 22 March 1999, held that the original time limit should not be extended since the prosecution had not acted with reasonable expedition but he accepted that a new time limit applied to the manslaughter charge. The judge said:

"the question is whether any new or amended charge is in substance a different offence, and there is no doubt that manslaughter is a different offence . . . carrying a different mens rea, and . . . significantly different consequences might flow in terms of length of sentence . . . it must follow that the time limit runs de novo from the preferment of the new offence of manslaughter".

7. On 23 April the appellant was committed for trial and on 18 May the Crown Court considered a new indictment charging (a) manslaughter (b) wounding with intent and (c) aggravated burglary. The appellant pleaded not guilty but at the trial on 22 September he pleaded guilty to manslaughter, the other charges remaining on the file and on 24 September he was sentenced to 10 years imprisonment.

"22.(1) The Secretary of State may by regulations make provision, with respect to any specified preliminary stage of proceedings for an offence, as to the maximum period

(a) to be allowed to the prosecution to complete that stage;

(b) during which the accused may, while awaiting completion of that stage, be

(i) in the custody of a magistrates' court; or

(ii) in the custody of the Crown Court;

in relation to that offence."

9. Subsection (3) of section 22 provides that the court may at any time before the expiry of the time limit imposed by the Regulations extend, or further extend, that limit. The court is not empowered to do so unless it is satisfied as to certain matters. At the relevant time these were "(a) that there is good and sufficient cause for doing so; and (b) that the prosecution has acted with all due expedition". By section 43 of the Crime and Disorder Act 1998 the requirement from 1 June 1999 was that the court should be satisfied that the prosecution "has acted with all due diligence and expedition"; and by section 22 (11ZA) it was provided that "For the purposes of this section, proceedings for an offence shall be taken to begin when the accused is charged with the offence or, as the case may be, an information is laid charging him with the offence".

10. By the Regulations to which I have referred, made pursuant to section 22 of the 1985 Act, it was provided:

"4.(1) the maximum period during which a person accused of an indictable offence other than treason may be in the custody of a magistrates' court in relation to that offence while awaiting completion of any preliminary stage of the proceedings specified in the following provisions of this Regulation shall be as stated in those provisions.

(4) In the case of an offence triable on indictment exclusively the maximum period of custody between the accused's first appearance and the time when the court decides whether or not to commit the accused to the Crown Court for trial, shall be 70 days. . . "

11. Time limits are provided for offences triable either on indictment or summarily and for offences triable summarily. Thus as to the former the period between the accused's first appearance and the start of the summary trial or the time when the magistrates' court decides whether or not to commit to the Crown Court is to be 70 days; when the court decides within 56 days of the accused's first appearance to proceed to summary trial, the time limit between the accused's first appearance and the date of the start of the summary trial must not exceed 56 days. As to offences triable summarily the period of detention between the accused's first appearance and the date of the start of the summary trial must not exceed 56 days.

12. Regulation 5 provides for custody time limits in the Crown Court. The wording of these provisions is different and nothing specifically turns on them in the present appeal but it is to be noted that in Regulation 5(2) where a person is accused of an indictable offence other than treason and is committed to the Crown Court for trial

"the maximum period during which he may be in the custody of the Crown Court in relation to that offence, or any other offence included in the indictment preferred against him, while awaiting the preliminary stage of the proceedings specified in the following provisions of this Regulation shall be as stated in those provisions".

13. By paragraph 5(4) it is provided:

"Where, following a committal for trial, the bill of indictment preferred against the accused (not being a bill preferred under the said section 2(2)(b)) contains a count charging an offence for which he was committed for trial at that committal together with a count charging an offence for which he was committed for trial on a different occasion, paragraph (3) above applies in relation to each offence separately".

Paragraph (3) provides the maximum periods of custody.

14. By section 4 of the Bail Act 1976 a person who is accused of an offence must be granted bail when he appears or is brought before a magistrates' court or the Crown Court in the course of or in connection with proceedings for the offence except as provided in Schedule 1 to the Act. It is thus plain that at the conclusion of the custody time limit, bail must be granted subject to one of the exceptions in the Schedule.

15. In the Divisional Court, Mitchell J, with whom Kennedy LJ agreed, considered that although it was technically not necessary to have introduced a new charge of manslaughter since even on the murder charge the Magistrate could have committed on the charge of manslaughter, this was "nonetheless a thoroughly desirable course to take, because accused persons should only be charged, committed and tried for offences which are reflected in the available evidence" even if there was a risk of "avoiding the statutory consequence of thoroughly dilatory preparation". No question arises before your Lordships as to whether refusal to extend the time on the earlier charge was justified. Mitchell J then considered in detail five cases where the problem as to whether fresh time limits applied to a substituted or an additional offence arose. I refer to the facts and rulings in those cases as set out in his judgment without repeating them. He did, however, lay particular emphasis on the judgment of Lord Bingham of Cornhill CJ in R v Burton on Trent Justices, Ex p Ashleigh-Nicholson [1998 ] COD 262, 17 December 1997, in which he said:

"The question whether a charge is new so as to attract a new custody time limit must be a question of substance rather than form. The legislative intention underlying the introduction of custody time limits is clear. It would defeat that purpose if relatively minor or unimportant amendments to charges were to enable the authorities to remand a defendant in custody for extended periods. On the other hand, if there is a substantial difference between one charge and another then it may indeed be just that that result should follow. But whether the difference between one charge and another is substantial must in my judgment depend, as I say, on more than a superficial comparison of the wording and may in a case of any doubt involve some consideration of underlying materials. . .

It would deprive the applicant of his rights at law if there were to be any prolonged or protracted delay before this question is resolved if it be the case that on proper analysis these are found to be the old charges in revised form rather than new charges in substance".

16. Mitchell J rejected the argument that the difference between murder and manslaughter was one of form and not of substance. In the light of the decided cases he said "I . . . have no doubt that the preferring of the manslaughter charges in this case properly resulted in the creation of a new custody time limit". Although abuse of process is not alleged in this case he added that he could not see how such an allegation could succeed because "it is desirable that where the evidence only warrants an allegation of manslaughter then manslaughter should be charged and murder withdrawn". He expressed concern, however, that since it was difficult to establish "abuse of process" since bad faith must be established, new time limits could be adopted which would defeat the purpose of the Regulations.

17. It is of coure important to bear in mind the purpose of the statute and the Regulations. In R v Manchester Crown Court, Ex p McDonald [1999] 1 WLR 841 Lord Bingham CJ said, at p 846:

"The 1985 Act and the 1987 Regulations, as amended, have three overriding purposes: (1) to ensure that the periods for which unconvicted defendants are held in custody awaiting trial are as short as reasonably and practically possible;

(2) to oblige the prosecution to prepare cases for trial with all due diligence and expedition; and

(3) to invest the court with a power and duty to control any extension of the maximum period under the regulations for which any person may be held in custody awaiting trial. These are all very important objectives. Any judge making a decision on the extension of custody time limits must be careful to give full weight to all three."

18. It is thus plain that Parliament intended that there should be limits to the period during which a person could be detained. The Secretary of State has imposed those limits by the Regulations at the expiry of which bail must be granted. No question arises on this appeal as to the meaning of the Regulations where only one charge is brought and whether or not it includes one or several offences. The question is whether when an offence is subsequently charged whether by alteration of an existing charge or the addition or substitution of a new charge a new limitation period arises in respect of the altered or new charge. It is clear that the additional substitution of a new charge does not affect the limitation period for the original offence charged. That can only be extended by an order under section 22(3) of the 1985 Act if the prescribed conditions are satisfied. The courts have also clearly recognised that a new period does not begin where the additional or substituted charges are sought to be added in circumstances which constitute an abuse of the process of the court though it is not clear what is the ambit of that exception.

19. On existing authorities of the Divisional Court, with which I agree, the mere change in the details of the charge which is necessary e.g. because of new evidence, does not in itself mean that time begins to run again. The offence is still the same to which the accused first appeared in court even if the details have been changed. If it were otherwise, the prosecution could endlessly add or change detailed particulars of the offence even if with an intention related only to the proper presentation of the case and time would begin to run again. That is not the situation in the present appeal.

20. It is also common ground that where the first and second offences are plainly distinct, a charge of the second offence attracts its own separate time limit. Detention in the custody of the magistrates' court on a charge of rape added to a charge of burglary committed on the same occasion is to be measured by the period of 70 days from the accused's first appearance on the rape charge. Although the section does not specifically deal with the addition to or substitution of offences to or for an existing offence charged, this seems to me plainly to be right. A separate offence has a separate time limit.

21. On this appeal the appellant concedes that the charging of a new offence would cause a fresh time to run unless the original offence charged necessarily includes or amounts to, whether expressly or impliedly, the new offence charged or where the prosecution in charging the new offence is "solely or substantially" influenced by a desire to cause a fresh custody time to run. The latter it is said would be inconsistent with the purpose of section 22 of the 1985 Act and contrary to Article 5 of the European Convention of Human Rights and an abuse of process.

22. It is to be noticed that section 22 empowers the Secretary of State to lay down periods for any stage of proceedings for an offence or time in custody "in relation to that offence". By subsection (11ZA) proceedings for "an offence shall be taken to begin when the accused is charged with the offence". By Regulation 4(1) the maximum period of custody "in relation to that offence while awaiting completion of any preliminary stage of the proceedings" is as stated in the Regulations. For an offence triable only on indictment the period is from the accused's first appearance and the time when the court decides whether or not to commit him to the Crown Courtthat must mean that the period prima facie runs for the offence on which he appears before the magistrates i.e. for each offence from the date of his appearance in relation to that offence. The emphasis is on the particular offence in each case.

23. Reliance is placed however by the appellant on section 6(2) and section 6(3) of the Criminal Law Act 1967. The former provides that on an indictment for murder a person found not guilty of murder may be found guilty inter alia of manslaughter or of causing grievous bodily harm with intent or with an attempt to do so. Subsection (3) provides:

"(3) Where, on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, that the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be guilty on an indictment specifically charging that other offence".

24. I do not consider that these provisions conclude the present question. They simply list the other offences of which the accused may be convicted. They do not make or deem them the same offence. Section 6(2) expressly treats the alternative convictions as being of a distinct offence and section 6(3) recognises that there may be conviction of "that other offence". If it had been intended to read "offence" in section 22 of the 1985 Act or Regulation 4 as including other offences of which he might be convicted, it could have said so. It is not surprising that it did not do so. Section 6 is concerned with what happens at the end of a trial. Regulation 4 is concerned with the preliminary stages of the proceedings up to the time when a decision to commit is taken where the court is concerned with the offences charged rather than with the offence proved. Magistrates are in relation to indictable offences looking to see if there is evidence of an offence justifying his being committed to trial. That is an exercise they carry out separately in relation to the initial offence charged and to the proposed additional or substituted offence. The offences charged in the two informations are separate offences and it is to them separately and solely that Regulation 4(4) is directed. Magistrates are not concerned under that regulation with what options would be available on the evidence as it turns out at the trial if the accused is found not guilty of the initial offence charged. They are concerned only with "that offence" charged in the information (see Regulation 2(2)(c)).

25. The appellant has submitted that a new custody time limit does not begin if "the original offence charged necessarily includes or amounts to, whether expressly or impliedly, the new offence charged". This at first sight has its attractions, but the question whether one offence "impliedly" or "necessarily includes" the other, may not be an easy one for magistrates to answer when a new information is laid. I also think that it may widen the exceptions to the general rule that each offence is to be taken as a separate offence under the regulation beyond what is intended or justified. Subject to the power of the court to control improper applications as being an abuse of process, it is in my view only where the constituent elements of the new offence are in substance the same as those of the original offence, so that it can be said that the offences are substantially the same, that a new custody time limit does not begin. That is not so in the comparison of murder and manslaughter for reasons which it is unnecessary to elaborate. The mens rea is wider, the effect of establishing self-defence or provocation are sufficient examples. It may not be so clear in many other cases and I recognise the restrictions on preventing a new custody time limit from beginning which that produces but in my view it flows from the structure and wording of the Regulations. As Buxton J said in R v Wolverhampton Magistrates' Justices, Ex p Uppal (1994) 159 JP 86, at p 92:

"it is quite clear from the cases that this court has cited that these regulations are to be construed to say what they say, and they say that each offence shall be taken separately. If the charge is properly justified, then properly a new custody time limit must run".

26. This may or may not be an undesirable result but in my view it is a clear consequence of the language of the statute. I decline to dismiss as absurd the opinion of judges experienced in criminal law and procedure in the cases in the Divisional Court to which we have been referred and the views of the Stipendiary Magistrate, the Crown Court judge and the Divisional Court in the present case. It is not in my view right in any event to say that the result is so absurd that the court must be driven to find some other meaning applicable in all cases coming before the magistrates' court which may well not be so clear cut as in the present case. If the result is thought to be unreasonable (and I accept Mitchell J's comments) it is for Parliament to change the provision of the statute and the Secretary of State to reconsider his regulation.

27. It is accepted that where to add or substitute a new charge amounts to an abuse of process, a new custody time limit does not begin. It has been said that where the new charge is brought in bad faith or dishonestly, that would amount to an abuse of process. In my view the ambit of "abuse of process" is not so limited. If a new charge is brought simply to keep the accused in custody for a longer period, that is clearly contrary to the intention of the legislation and constitutes an abuse of process. As Professor Smith said in his commentary to R v Great Yarmouth Magistrates', Ex p Thomas, Davis and Darlington [1992] Crim LR 116, at p 117:

"Perhaps the more specific question to be asked is whether the charges of possession with intent were brought solely for the purpose of retaining the applicants in custody".

28. Equally if the court is satisfied that the way in which and the time at which the new charge is added or substituted, indicates that it is not done for the genuine purpose of introducing a new charge on a revised assessment of the case, but is done primarily to keep the accused in custody on the initial charge, then this will constitute an abuse of process. Of course on the other hand if the purpose is genuinely to introduce a new charge on such a revised assessment the fact that the accused begins a new custody period does not in itself constitute an abuse of process.

29. It was not contended below that there was an abuse of process here and on my view of the construction of the section and the Regulation such a matter does not fall for consideration on the present appeal.

30. Though they did not do so in the courts below, before your Lordships the appellants have relied on Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as incorporated in the Human Rights Act 1998. They say further that pursuant to section 3 of that Act section 22 of the 1985 Act and the Regulations must be read and given effect to in a way compatible with Convention rights so far as it is possible to do so.

31. Article 5 provides so far as relevant:

"(1) Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: . . .

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;. . .

(3) Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial".

32. On the view which I have formed of the relevant legislation the appellant was deprived of his liberty in accordance with a procedure prescribed by law. It was detention effected for the purpose of bringing him before a competent legal authority on reasonable suspicion of having committed an offence. He was brought promptly before a court and was entitled to trial within a reasonable time.

33. To show that procedures of domestic law have been complied with is necessary but it is not enough. Those procedures must themselves respect the objectives of Article 5 of the Convention. It has been said by the European Court that the purpose of Article 5 is "to protect the individual from arbitrariness" X v United Kingdom (1981) 4 EHRR 188, Bozano v France (1986) 9 EHRR 297, Brogan v United Kingdom (1988) 11 EHRR 117 and Amuur v France (1996) 22 EHRR 533. Moreover, it is necessary not merely that the appellant should have access to a court under precise rules, but his detention should be justified as a matter of public interest and then only during a reasonable time (see W v Switzerland (1993) 17 EHRR 60 and Wemhoff v Germany (1968) 1 EHRR 55.

34. Full weight must be given to these cases relied on by the appellant. In my view, however, it has not been shown that his detention was arbitrary. No complaint can be made for the first 70 day period: the second is justified because a new charge is brought on the basis of a very substantial body of evidence delivered to the defence shortly before the second charge was laid. It was right to change the charge to the lesser offence of manslaughter in the light of the reconsideration of the case. For the serious offences involved here, I do not consider that the periods prescribed in the Regulations can be said to be unreasonable.

35. Moreover there was an opportunity to challenge the laying of the second charge and the second detention period as an abuse of the process of the court. That was not done, understandably. There existed a procedure by which the decision of the Magistrate could be challenged by way of judicial review. That was done in this case. During the period when the appellant was in the custody of the magistrates' court, the provision of section 128(6) of the Magistrates' Court Act 1980 requires that "a court may not remand a person for a period exceeding 8 clear days"